As he campaigns on a pledge to lead an unprecedented crackdown on legal and illegal immigration, former President Donald Trump has vowed to invoke an 18th century wartime law to help fuel his massive deportation operations. According to three people familiar with the policy deliberations, Trump, his advisers, and allies have been developing legally dubious justifications and theories to give Trump what he would ostensibly need to wield the archaic law as a weapon against the undocumented if he’s elected president again.
If Trump were to try to invoke the Alien Enemies Act for this purpose, it would almost certainly provoke court challenges, since the law is meant to target the actions of foreign governments and regimes during wartime, not alleged criminals, gangs, or non-state actors. One source familiar with the plans — a lawyer who has counseled Trump over the years — tells Rolling Stone the legal justifications under consideration by the ex-president and his associates are “very convoluted and crazy to me.”
This attorney adds, “I really don’t know how you get away with this in court.”
Still, the former president and some of his closest allies are determined to invoke the Alien Enemies Act and put these legal theories to the test, should Trump retake the White House. Trump’s public remarks on the matter have presented little detail about how, exactly, he and his government-in-waiting would circumvent the glaring legal obstacles. The three sources shed light on some of the twisted legal justifications being cooked up by Trump and his inner sanctum.
Last year, right-wing lawyers and policy advocates repeatedly spoke directly to Trump, former White House senior adviser Stephen Miller, and others in the MAGA elite about these ideas and generally received positive feedback, the people familiar with the situation say. One of the sources read to Rolling Stone from a written memo that had been circulated in the upper ranks of Trumpland, outlining how Trump in a second term could “get this done,” the source says, stressing that this would be supposedly “all legal.”
Invoking the Alien Enemies Act is a key component of the multi-pronged immigration and southern-border clampdown that Trump is planning. The law, first passed in 1798, grants presidents the authority to remove foreign nationals over the age of 14 from countries where the United States is either engaged in a declared war or subject to “invasion or predatory incursion” by their country of origin.
The text of the law presents a number of problems for the would-be mass deportation plans, which opponents would likely attempt to leverage in federal court. Congress has not declared war on any country since World War II, much less on any of the Latin American countries whose citizens Trump would like to deport. Nor has any foreign country invaded the U.S. since the post-war period.
But the sources say a second Trump administration would, for instance, argue in court that cartels, gangs, and drug dealers in Latin America have, essentially, co-opted and corrupted their governments to such a degree that the criminals represent effective state actors. Trump and his senior officials would present documents and evidence that these foreign nations — including Mexico and El Salvador — have lengthy track records of corrupt high-level government and law-enforcement officials being on the payroll of and working with drug cartels and violent criminal groups.
The administration would further claim, according to the sources, that members of cartels and gangs in the U.S. are therefore engaged in an invasion on behalf of foreign narco-states — enabling Trump to use the authorities of the Alien Enemies Act, which in text appears to apply strictly to foreign governments attacking the U.S.
By using the Alien Enemies Act, rather than existing immigration enforcement authority, a future Trump administration could “suspend the due process that normally applies to a removal proceeding,” Miller explained during a September talk radio appearance. Once migrants are relieved of their right to due process and appeals, Trump could more easily carry out a mass deportation operation of the scale he has outlined in campaign speeches.
“I’m pretty skeptical that courts would accept the idea that the current migration conditions would satisfy the requirements of the Alien Enemies Act,” says Adam Cox, a scholar of immigration law at NYU School of Law. “The only times it’s ever been invoked in our history are in cases of actual hostilities with other nations. There’s not really any historical basis for reading this to encompass actions by non-state actors, nor is there any textual basis for doing that.”
Cox says that while the Alien Enemies Act would provide for more expedited removals at scale, there is already “authority to do things that candidate Trump said he wants to do, like mass deportations, even under existing immigration law.” (During the Trump administration, immigration officials expanded the pool of immigrants subject to the “expedited removal” procedure, which limits immigrants’ right to a hearing during a deportation process.)
Aside from the legal hurdles, any attempt to cast Latin American countries — many of which are friendly nations that partner with the U.S. on issues like immigration, trade, and security — as rogue narco-states at war with America is sure to cause a diplomatic rift. Mexico’s current president, Andrés Manuel López Obrador, has bristled at suggestions by Republican lawmakers that Mexico lacks control over its territory and should be subject to U.S. military strikes — if not invasion — against cartels.
Furthermore, two of the sources familiar with the matter tell Rolling Stone that though Trump has been campaigning on using the Alien Enemies Act to target “known or suspected gang members, drug dealers, or cartel members” operating in the United States,” the ex-president envisions using it to cast a much wider dragnet. In private conversations last year, Trump talked to some fellow anti-immigration hardliners about how it wasn’t enough to deport the “bosses” and the drug dealers.
According to the two sources, Trump mentioned that it was important to also use the law to expel their family members and associates and others in their networks who were also non-citizens — even if they weren’t, strictly speaking, “cartel members.”
Though the former president has kept generally quiet in public about how he would try to legally pull off this invocation, at least one veteran of his first administration has publicly referenced this legal argument, even if the former official only sounded partially sold on its feasibility.
In October, George Fishman, a Center for Immigration Studies senior fellow who served as deputy general counsel in Trump’s Department of Homeland Security, wrote that though the premise “would be an uphill climb in federal court,” there are arguments existing referencing “the rise of ‘mafia states,’ nations in which ‘criminals have penetrated governments to an unprecedented degree’ and ‘rather than stamping out powerful gangs,’ the ‘governments have instead taken over their illegal operations’ with ‘government officials enrich[ing] themselves… while exploiting the money, muscle, political influence, and global connections of criminal syndicates to cement and expand their own power.’”
Fishman added in his post: “In such situations, a powerful argument might be made that gang or cartel crimes in the U.S. (if rising to the level of an invasion or predatory incursion) have been carried out by foreign governments.”
On the campaign trail, Trump has repeatedly signaled his interest in using the Alien Enemies Act to grant him the authority to conduct mass deportations. In September, the former president vowed to “immediately” invoke the act to deport drug dealers, cartel members, and “all known or suspected gang members.”
Trump allies have also backed the logic underlying the former president’s hopes to invoke the Alien Enemies Act, with some going so far as to advocate that the U.S. go to war in Mexico. In March, Sen. Lindsey Graham (R-S.C.) called Mexico a “narco-terrorist state” and introduced a bill to designate Mexican drug cartels as foreign terrorist organization and authorize the use of unilateral military force against them.
But so far, Republican state officials have fared poorly when trying to cast immigration as a hostile foreign “invasion” when arguing in court.
Gov. Greg Abbott argued that Texas “retains sovereign authority to defend itself in the event of invasion” in a lawsuit filed by the Biden administration seeking to stop the state from using floating buoys to block immigrants seeking to cross the Rio Grande river. A federal court and the conservative 5th Circuit Court of Appeals disagreed, siding with the Biden administration. Last month, Abbott promised to take his case to the Supreme Court.
But before Trump and his MAGA policy wonks began eyeing the narco-states justification, the ex-president’s government-in-waiting had researched other legal arguments that creative, right-wing attorneys could make to support Trump’s use of the Alien Enemies Act. Some of the ideas that were under discussion last year proved too extreme or flimsy to pass the smell test, even by the often depraved standards of Trumpland.
One idea that was briefly kicked around and discussed with Trump was finding a way to translate his campaign-trial rhetoric — about foreign governments intentionally sending legions of unwanted and violent undocumented immigrants to the U.S. — into actual government documents or legal memoranda.
For years, the 2024 GOP presidential frontrunner has been fond of saying, including at his rallies, that the Mexican government (as well as governments in other unnamed nations on different continents) are deliberately sending their “bad” people to America, so that the U.S. will have to deal with them instead. These foreign leaders are, in Trump’s imagination, purposely seeding migrant caravans with people from their prisons, “mental institutions,” and “insane asylums.” Trump made similar nativist claims during his political rise in 2015 and his time in office, and he continues to do so in his campaign for the 2024 Republican nomination.
And yet, there is barely — if any — shred of evidence, intelligence report, or documentation backing up Trump’s insistence that foreign governments are now intentionally siccing their prisoners and mentally ill on the U.S. in large numbers. Such an outlandish claim, if true, could be used to legally argue that foreign powers are “invading” or attacking America, and therefore provide a pretext for invoking the Alien Enemies Act. However, the absolute dearth of evidence for Trump’s assertion quickly led his current advisers to believe that any attempt to shoehorn those claims into government or legal documents would only make it easier for the courts to strike down Trump’s invocation of the wartime law, two sources familiar with the situation say.
Trump’s apparently firm conviction is not likely to be supported by any classified documents he was shown as president or any well-sourced contemporaneous reporting on the matter. It might, however, have something to do with a movie he’s watched.
According to a former senior administration official and another person close to Trump, he has at times over the years — including in the White House’s West Wing — privately told subordinates that foreign leaders are releasing their “worst” into America “just like in the movie Scarface.”
The bloody 1983 crime epic, directed by Brian De Palma and written by Oliver Stone, stars Al Pacino as Tony Montana, a Cuban refugee who builds a cocaine empire in Miami. The film opens with a sequence stating that Cuba’s Fidel Castro loaded U.S.-bound emigrant boats with “the dregs of his jails,” and that’s how Florida got drug lord Tony Montana — who famously uttered, “SAY HELLO TO MY LITTLE FRIEND,” before going on an infamous gun-toting rampage in his decadent mansion.
